Fletcher v. Commonwealth

163 S.W.3d 852, 2005 Ky. LEXIS 167, 2005 WL 1183241

• Court: Kentucky Supreme Court
• Decided: May 19, 2005
• Docket: 2005-SC-0046-TG, 2005-SC-0049-TG, 2005-SC-0050-TG
• Status: Published

Opinions

Opinion of the Court by

Justice COOPER.

The issue presented by this appeal is whether the Governor of the Commonwealth of Kentucky may order money drawn from the state treasury to fund the operations of the executive department of government if the General Assembly fails to appropriate funds for that purpose. The issue arose when the General Assembly adjourned sine die on April 14, 2004, without adopting an executive department budget bill for the 2004-06 biennium.

Unlike some state constitutions, e.g., Cal. Const, art. IV, § 12(c), the Constitution of Kentucky does not require a state “budget.” It does, however, require that any such budget be balanced. That constitutional requirement derives from Sections 49, 50, and 171, which together authorize and require the General Assembly to raise revenues sufficient to pay the debts and expenses of government. See generally Dalton v. State Prop. & Bldg. Comm’n, 304 S.W.2d 342, 347-51 (Ky.1957); State Budget Comm’n v. Lebus, 244 Ky. 700, 51 S.W.2d 965 (1932). The first statutory provisions describing a budgeting process were enacted in 1918 and compiled at KS § 1992, et seq. 1918 Ky. Acts, ch. 12. The present version, KRS Chapter 48, is a comprehensive scheme that describes the process for preparing and enacting a “budget bill” by which the revenues of the Commonwealth are appropriated for the operation of the three departments of government during the ensuing biennium. KRS 48.300(1). All provisions of a budget bill expire at the conclusion of the second fiscal year of the biennium. KRS 48.310(1). If a budget bill is enacted at an extraordinary session, Ky. Const. § 80, its provisions expire on “July 1 of the year in which the next even-numbered year regular session takes place.” KRS 48.310(1).

Prior to 2001, the General Assembly met in regular legislative session only for sixty legislative days in even-numbered years. Ky. Const. §§ 36 (unamended), 42 (unamended). Necessarily, the budget bill for the next biennium was enacted during those sessions. Sections 36 and 42 were amended in 2000 to add an additional regular session of thirty legislative days in odd-numbered years. Id. (as amended). However, because all existing budget bills expire on July 1 of even-numbered years, the General Assembly has continued to address budget issues during the sixty-day even-numbered-year sessions. On three occasions within a ten-year period, the General Assembly adjourned its sixty-day regular session without enacting an executive department budget bill for the next biennium. On the first occasion, 1994, Governor Jones reconvened the General Assembly into an extraordinary session, during which the members resolved their differences and enacted a budget bill for the 1994-96 biennium.

At the 2002 regular session, the Republican-controlled Senate and the Democratic-controlled House of Representatives deadlocked on whether to appropriate funds for the election campaign fund created by the Public Financing Campaign Act, KRS 121A.020, and adjourned sine die on April 15, 2002, without enacting a budget bill for either the executive or judicial departments for the 2002-04 biennium. On April 17, Governor Patton reconvened the General Assembly into an extraordinary session for the sole purpose of negotiating a budget bill. Recalcitrance prevailed, however, and the General Assembly adjourned the special session on May 1, 2002, without enacting a budget bill for either of the other two departments of government.

On June 26, Governor Patton promulgated an “Executive Spending Plan” and authorized the Secretary of the Finance and Administration Cabinet to issue warrants against the treasury to implement that plan “and to assist the Court of Justice as may be necessary to implement lawful expenditures for its operation.” Exec. Order No.2002-727, para. 6, at 4.¹ In essence, the Governor adopted his own executive department budget and ordered appropriations from the state treasury to fund it. The Treasurer filed a petition in the Franklin Circuit Court for a declaration of rights, KRS 418.040, to determine the constitutionality of the Executive Spending Plan. Ky. Dept. of the Treasury ex rel. Miller v. Ky. Fin. and Admin. Cabinet, No. 02-CI-00855 (Franklin Circuit Court, filed June 26, 2002). However, the legislative deadlock dissolved when all potential gubernatorial candidates announced their intentions to reject public financing of the 2008 election. During its 2003 regular thirty-day session, the General Assembly enacted a budget bill for the 2002-04 biennium that did not fund the election campaign fund and ratified the Governor’s expenditures under the Executive Spending Plan, nunc pro tunc. The Franklin Circuit Court dismissed the declaration of rights action as moot. See generally Paul E. Salamanca, The Constitutionality of an Executive Spending Plan, 92 Ky. L. J. 149, 152-58 (2003-04).

At the 2004 regular session of the General Assembly, the Republican-controlled Senate and the Democratic-controlled House of Representatives again deadlocked, this time on whether the 2004 executive department budget bill should include new taxation measures proposed by Republican Governor Fletcher. On March 9, 2004 (day 44 of the 60-day session), the House passed a budget bill that substantially amended the budget recommendation submitted by the Governor pursuant to KRS 48.100(1) and 48.110(6). On March 10, the House’s version of the budget bill officially arrived at the Senate. On March 11, the Governor unveiled his proposed new taxation measures. On March 29 (day 58), the Senate passed its version of the budget bill, restoring many of the Governor’s original recommendations and adding the Governor’s tax proposals. Conference committee negotiations failed and, on April 14, 2004 (day 60), the General Assembly adjourned sine die without enacting an executive department budget bill for the 2004-06 biennium.

Unlike Governors Jones and Patton before him, Governor Fletcher did not reconvene the General Assembly into extraordinary session for the purpose of further budget negotiations. When asked during oral argument whether the Governor should have called an extraordinary session so that the General Assembly could attempt to resolve its differences, the attorney for the President of the Senate responded that an extraordinary session would have been “futile.” Instead, the Governor announced that he, like Governor Patton before him, would formulate his own executive department spending plan, 1.e., his own budget.

On May 27, 2004, the Attorney General filed this action in the Franklin Gircuit Court against the Governor, the Treasurer, and the Secretary of the Finance and Administration Cabinet seeking to preclude the anticipated suspension of 153 existing statutes in the Governor’s executive spending plan. Other parties, including the President of the Senate, the Speaker of the House of Representatives, individual legislators, representatives of state employees, and the Board of Trustees of the Kentucky Employees Retirement System, intervened to assert limitations on the Governor’s power to suspend statutes or to spend unappropriated funds. Common Cause of Kentucky, an unincorporated self-styled “non-profit, non-partisan organization which advocates ethics and constitutional law in Kentucky,” intervened on the relation of its chairman, a self-described “Kentucky taxpayer,” seeking an injunction against the Governor to preclude him “from implementing any spending plan which would draw money from the State Treasury without appropriations made by the Legislature” in contravention of Section 230 of the Constitution of Kentucky.

On June 28, 2004, Governor Fletcher promulgated Executive Order 2004-650, adopting an executive department budget which he denominated a “Public Services Continuation Plan.” The Order noted that:

Through its adoption of House Bill 396, the General Assembly has made appropriations for the use of the Judicial Branch totaling $234,648,400, and in House Bill 397 for the Legislative Branch totaling $40,731,400, leaving $20,739,752,600 in previously estimated revenues identified for use by the Executive Branch, as modified by the Consensus Forecasting Group estimates of June 8, 2004, for the operation and function of the Executive Branch of government.

The Public Services Continuation Plan proposed to appropriate exactly $20,739,752,600 to the executive department for its operations during fiscal year 2004-05 and authorized the Secretary of the Finance and Administration Cabinet to issue warrants against the state treasury to obtain those appropriations as needed.

On October 4, 2004, the Governor issued a proclamation convening the General Assembly into-extraordinary session, but only to consider “the compensation, health insurance benefits and retirement benefits of active and retired public employees, and making an appropriation therefor.” The General Assembly resolved those issues but Section 80 of the Constitution precluded it from considering any other unresolved budget issues.

On December 15, 2004, the Franklin Circuit Court declared the Public Services Continuation Plan unconstitutional but authorized its continuation until June 30, 2005,² after which, “absent legislative action, no public funds shall be expended from the State Treasury ..., with the exception of those funds demonstrated to be for limited and specific essential services previously approved in Quertermous [Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947)].” On January 13, 2005, the Governor and the Secretary of the Finance and Administration Cabinet appealed. We granted transfer, CR 74.02, ordered an expedited briefing schedule, and set oral arguments for March 9, 2005. On March 8, 2005, during the course of its thirty-day regular legislative session, the General Assembly enacted both an executive department budget bill for the 2004-06 biennium and a tax bill. As it had done in its 2003 session, the General Assembly also ratified all executive department actions taken pursuant to the Public Services Continuation Plan, nunc pro tunc.

I. MOOTNESS.

Counsel for the Governor suggested at oral argument that this appeal should now be dismissed as moot because the Public Services Continuation Plan no longer exists and the General Assembly has ratified the appropriations and expenditures made by the executive department under that plan. However, a well-known exception to the mootness doctrine occurs when an issue is “capable of repetition, yet evading review.” Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky.1983) (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976)); see also Woods v. Commonwealth, 142 S.W.3d 24, 31 (Ky.2004); Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky.1994). A two-part test governs the application of this exception: “(1) is the 'challenged action too short in duration to be fully litigated prior to its cessation or expiration and (2) [is there] a reasonable expectation that the same complaining party would be subject to the same action again.”’ Hughes, 873 S.W.2d at 830 (quoting In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir.1988)). The present case satisfies both prongs.

On three occasions within a ten-year period, the General Assembly convolved itself into a partisan deadlock and adjourned sine die without enacting an executive department budget bill. After the two most recent such occasions, the respective governors promulgated their own budgets and ordered appropriations drawn from the treasury in accordance therewith. On each occasion, lawsuits were filed to test the constitutionality of those actions. On each occasion, the General Assembly enacted an executive department budget bill and ratified the governor’s actions before the issue could be finally resolved by the Court of Justice. Having no assurance that similar partisan brinkmanship will not recur in the General Assembly, resulting in future gubernatorially promulgated budgets, we conclude that this issue is capable of repetition, yet evading review, and will address its merits. See Burlington Northern R. Co. v. Bhd. of Maint. of Way Employees, 481 U.S. 429, 436 n. 4, 107 S.Ct. 1841, 1846 n. 4, 95 L.Ed.2d 381 (1987) (“Because these same parties are reasonably likely to find themselves again in dispute over the issues raised in this petition, and because such disputes typically are resolved quickly by .. .• legislative action, this controversy is one that is capable of repetition yet evading review.”).

II. POLITICAL QUESTION.

The President of the Senate suggests that when a budget deadlock occurs, a court can supervise the Governor’s expenditures on an item-by-item basis to ensure that they do not exceed the constitutional exception for “essential services” allegedly created in Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947). The Governor responds that budgetary matters, including determinations of what services are essential or not, are nonjusticiable political questions that should be reserved to the other departments of government.

The “political question” doctrine is grounded primarily in the separation of powers. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). Under this doctrine, the judicial department should not interfere in the exercise by another department of a discretion that is committed by a textually demonstrable provision of the Constitution to the other department, Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491 (1969), or seek to resolve an issue for which it lacks judicially discoverable and manageable standards, Vieth v. Jubelirer, 541 U.S. 267, 276, 124 S.Ct. 1769, 1776, 158 L.Ed.2d 546 (2004). See, e.g., Philpot v. Haviland, 880 S.W.2d 550, 554 (Ky.1994) (determination of what is a “reasonable time” within which to report a bill out of a legislative committee under Section 46 of the Constitution is a purely legislative issue); Dalton, 304 S.W.2d at 345 (wisdom of fiscal policy, levy of taxes, and appropriation of revenue is outside the purview of judicial authority); Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632, 635 (1922) (“The expediency of a statute, or whether or not the public weal demands its enactment, are political questions, which address themselves to the legislative department of the government .... ”). We agree with the Governor that the judicial department should neither inject itself nor be injected into the details of the executive department budget process. What constitutes an essential service depends largely on political, social and economic considerations, not legal ones. Vaughn v. Knopf, 895 S.W.2d 566, 567 (Ky.1995) (declaring the statute requiring circuit court oversight of sheriffs budget unconstitutional: “In acting on these annual budget requests, the judges would, per se, be injected into the political side of the executive branch offices.”).

The issue in this case, however, is not the efficacy or necessity of a particular appropriation, but whether the Governor has any constitutional authority to determine what are essential services or to unilaterally order any appropriations from the treasury.

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

[[Image here]]

The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.

Baker, 369 U.S. at 211, 217, 82 S.Ct. at 706, 710. The issue presented by this case is a constitutional issue, not a political one; thus, it is justiciable. Cf. Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky.1989) (“To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.”)

III. SEPARATION OF POWERS.

Section 27 of the Constitution of Kentucky provides:

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. Section 28 provides:

No person or collection of persons being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Section 28’s “unusually forceful command,” Ex Parte Auditor of Public Accounts, 609 S.W.2d 682, 684 (Ky.1980), has no counterpart in the United States Constitution. It is reputed to have been penned by Thomas Jefferson.³

When Mr. Jefferson returned from France, the federal constitution had been adopted; and, having been appointed secretary of state, he obtained permission to go to Monticello for some months. John Breckinridge and George Nicholas paid him a visit there, and informed him that Kentucky was about to frame a constitution for herself, and that Virginia was about to permit Kentucky to become a separate and independent state. He told them that there was danger in the federal constitution, because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs. Mr. Jefferson drew the form of the provision, and gave it to Nicholas and Breckin-ridge; and it was taken by Nicholas to the convention which met at Danville, and there presented, — Breckinridge not being present at the convention. There was much discussion and dissent when the article was offered, but, when its author was made known, the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted.

Comm’rs of Sinking Fund v. George, 104 Ky. 260, 47 S.W. 779, 785 (1898) (Du Relie, J., dissenting). See also Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745, 752 (1930) (Willis, J., dissenting); Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922); Purnell v. Mann, 105 Ky. 87, 48 S.W. 407,; 50 S.W. 264, 264 (1899) (Du Relie, J., dissenting); Sheryl G. Snyder & Robert M. Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165, 206 (1984-85).

Though the separation of powers is not as forcefully enunciated in the United States Constitution, the principal drafter of that document clearly intended that there would be a strict separation. “If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers.” James Madison, Speech on the Floor of the House of Representatives, June 22, 1789, in 1 Annals of Congress 581. The United States Supreme Court has consistently allayed Jefferson’s purported fears. E.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239, 115 S.Ct. 1447, 1463, 131 L.Ed.2d 328 (1995) (“[T]he doctrine of separation of powers is a structural safeguard ... a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.”); Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983), (“The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”); Nixon v. Fitzgerald, 457 U.S. 731, 760-761, 102 S.Ct. 2690, 2707, 73 L.Ed.2d 349 (1982) (“The essential purpose of the separation of powers is to allow for independent functioning of each coequal branch of government within its assigned sphere of responsibility, free from risk of control, interference, or intimidation by other branches.”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588-89, 72 S.Ct. 863, 867, 96 L.Ed. 1153 (1952) (only Congress has authority to authorize seizure of private property for public use; consequently, the President exceeded his executive powers by seizing steel mills to avert a nationwide shut-down by labor union strike).

Likewise, we and our predecessor court have interpreted Sections 27 and 28 to mandate a strict separation of powers. Rejecting an argument that the provisions should be liberally construed in the modern era to permit. some legislative encroachment on executive powers, Snyder & Ireland, supra, at 206-07, we noted in Legislative Research Com’n ex rel. Prather v. Brown [“L.R.C. v. Brown”], 664 S.W.2d 907 (Ky.1984), that:

Our present constitution contains explicit provisions which, on the one hand, mandate separation among the three branches of government, and on the other hand, specifically prohibit incursion of one branch of government into the powers and functions of the others.

[[Image here]]

[I]t has been our view, in interpreting "Sections 27 and 28, that the separation of powers doctrine is fundamental to Kentucky’s tri-partite system of government and must be “strictly construed.”

[[Image here]]

The precedents established by this court have been uniform in retaining the goals set out by the framers. The separation of powers doctrine is set in the concrete of history and legal precedent.

Id. at 912, 914. See also Diemer v. Commonwealth, 786 S.W.2d 861, 864 (Ky.1990) (“Kentucky is a strict adherent to the separation of powers doctrine.”); Sibert, 246 S.W. at 458 (“The purpose was to have each of them to so operate in their respective spheres. as to create checks to the operations of the others and to prevent the formation by one department of an oligarchy through the absorption of powers belonging to the others.”).

As anticipated by the “except” clause in Section 28, the Constitution does articulate some exceptions to the strict separation of powers. For example, the Governor’s veto power, Ky. Const. § 88, is a legislative function. Arnett v. Meredith, 275 Ky. 223, 121 S.W.2d 36, 37 (1938). The power of the Senate to try impeachments, Ky. Const. § 67, is a judicial function. And the Chief Justice’s administrative powers, Ky. Const. § 110(5)(b), are executive functions. Further, while the General Assembly cannot delegate its power to make law, it can make a law that delegates the power to determine some fact or state of things upon which the law makes its own action depend — so long as the law establishes policies and standards governing the exercise of that delegation. L.R.C. v. Brown, 664 S.W.2d at 915; Bloemer v. Turner, 281 , 137 S.W.2d 387, 391 (1939). See Bd. of Trustees v. Attorney Gen., 132 S.W.3d 770, 781-85 (Ky.2003), for a detailed discussion of the “nondelegation doctrine.” The authority of the General Assembly to make a limited delegation to the executive department has, on occasion, been extended to expenditures of excess or emergency funds. Hopkins v. Ford, 534 S.W.2d 792, 795-96 (Ky.1976); Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288, 166 S.W.2d 409, 412 (1942). In fact, KRS 48.150 anticipates that the budget will appropriate funds to each department of government to meet unexpected contingencies or emergencies. However, in the absence of a proper delegation of authority by one department to another, or a specific exception articulated by the Constitution, itself, Section 28 has erected a “high wall,” Plaut, 514 U.S. at 239, 115 S.Ct. at 1463, which precludes the exercise by one department of a power vested solely in either of the others.

The doctrine of the separation of powers was adopted ... not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160 (1926) (Brandéis, J., dissenting).

IV. APPROPRIATIONS POWER.

I simply believe that “Congress shall make no law” means Congress shall make no law.

Hugo Black, A Constitutional Faith 45 (1969), referring, of course, to the First Amendment of the United States Constitution. That simple textual interpretation mirrors the primary rule of constitutional construction: “There is no room for construction of a Constitution outside of the words themselves, if they are unambiguous .... ” Button v. Drake, 302 Ky. 517, 195 S.W.2d 66, 68 (1946).

When the framers of the Constitution use language that is in no sense ambiguous, it is not a function of this court to construe that language as meaning something that the framers of the Constitution did not say, or to hold that while the Constitution says something definitely and unequivocally, no special importance is to be attached to its language.

Harrod v. Hatcher, 281 Ky. 712, 137 S.W.2d 405, 407 (1940). See also Pardue v. Miller, 306 Ky. 110, 206 S.W.2d 75, 78 (1947) (“The basic rule ... is to interpret a constitutional provision according to what was said and not what might have been said .... ”). That rule applies to the unambiguous words of Section 230 of the Constitution of Kentucky, viz:

No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law ....

We have consistently held that this provision means exactly what it says. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 441 (Ky.1986) (“It is clear that the power of the dollar — the raising and expenditure of the money necessary to operate state government — is one which is within the authority of the legislative branch of government. The Constitution of the Commonwealth so states and we have so stated.”); L.R.C. v. Brown, 664 S.W.2d at 925 (“The budget, which provides the revenue for the Commonwealth and which determines how that revenue shall be spent, is fundamentally a legislative matter.”); Ferguson v. Oates, 314 S.W.2d 518, 521 (Ky.1958) (“[T]he purpose of [Section 230] was to prevent the expenditure of the State’s money without the consent of the Legislature.”) (internal citation and quotation omitted).

Article I, Section 9, Clause 7 of the United States Constitution contains wording almost identical to that of Section 230, and the United States Supreme Court has consistently given that provision its literal meaning. Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 770, 81 L.Ed. 1122 (1937) (“It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”); Reeside v. Walker, 52 U.S. (11 How.) 272, 291, 13 L.Ed. 693 (1850) (“However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned.”). Its purpose is to vest in Congress, the branch of government that is most representative of the people, the power to determine how the people’s money will be spent. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 427-28, 110 S.Ct. 2465, 2473, 110 L.Ed.2d 387 (1990) (“But the Clause has a more fundamental and comprehensive purpose .... It is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants.”); Cincinnati Soap Co., 301 U.S. at 321, 57 S.Ct. at 770 (“The provision of the Constitution ... that, ‘No Money shall be drawn from the Treasury, but in Consequence of • Appropriations made by Law,’ was intended as a restriction upon the disbursing authority of the Executive department .... ”).

The object is apparent upon the slightest examination. It is to secure regularity, punctuality, and fidelity, in the disbursements of the public money. As all the taxes raised from the people, as well as revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that congress should possess the power to decide how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation ....

Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858).

It is an axiom of American government that the legislature holds the purse strings. The federal and most state constitutions, for example, require that the budget originate in the House of Representatives, the arm of government most representative of the populace. This is traditionally viewed as the means by which the representatives of the people hold their most powerful check and balance upon the executive branch.

Snyder & Ireland, supra, at 225.

The Governor asserts that Section 230 applies only if the General Assembly has enacted a budget bill. As noted at the outset of this opinion, there is no provision in the Constitution of Kentucky requiring the General Assembly to enact a budget bill. Such is purely a statutory requirement. Since Section 230 preexisted that statutory scheme, the Framers could not have intended for the Section to apply only when the General Assembly enacts a budget bill. Accordingly, we hold that, in the absence of a specific appropriation, or a statutory, constitutional, or federal mandate as discussed below, the unambiguous language of Section 230 prohibits the withdrawal of funds from the state treasury.

V. STATUTORY, CONSTITUTIONAL AND FEDERAL MANDATES.

KRS 41.110 provides:

No public money shall be withdrawn from the Treasury for any purpose other than that for which its withdrawal is proposed, nor unless it has been appropriated by the General Assembly or is a part of a revolving fund, and has been allotted as provided in KRS 48.010 to 48.800, and then only on the warrant of the Finance and Administration Cabinet. The provisions of this section do not apply to withdrawals of funds from state depository banks for immediate redeposit in other state depository banks or to funds held in trust for the security of bond holders.

Where the General Assembly has mandated that specific expenditures be made on a continuing basis, or has authorized a bonded indebtedness which must be paid, such is, in fact, an appropriation. Otherwise, the General Assembly has not delegated its constitutional power of appropriation to the executive department. It has even forbidden the expenditure of surplus monies in the general and road funds. KRS 48.700(8); KRS 48.710(8).

There are statutes that mandate appropriations even in the absence of a budget bill. E.g., KRS 18A.015(2) (“Appropriations shall be made from the general expenditure fund to the cabinet to meet the estimated pro rata share of the cost of administering the provisions of this chapter .... ”); KRS 44.100 (“All amounts necessary to pay awards and cost of operation assessed by the board [of claims] against all other cabinets or agencies of the Commonwealth shall be paid out of the general fund of the Commonwealth, upon warrants drawn by the secretary of the Finance and Administration Cabinet upon the State Treasurer.”); KRS 45A.275 (“The first five hundred thousand dollars ($500,000) of any Kentucky court judgment against the Commonwealth awarding damages on a contract claim under the provisions of KRS 45A.240 to 45A.270 shall be a necessary governmental expense and payment shall be approved by the Finance and Administration Cabinet and paid by the State Treasurer. Appropriations for these judgments shall be continued appropriations.”); KRS 61.565(1) (“Each employer participating in the State Police Retirement System ... and each employer participating in the Kentucky Employees Retirement System ... shall contribute annually to the respective retirement system .... ”). There are others — but they are substantially less than legion. In those instances, the General Assembly has already made the necessary appropriations. White v. Davis, 108 Cal.App.4th 197, 138 Cal.Rptr.2d 691, 699-700 (2002), reversed in part on other grounds by White v. Davis, 30 Cal.4th 528, 133 Cal.Rptr.2d 648, 68 P.3d 74 (2003).

However, the mere existence of a statute that can be implemented only if funded does not mandate an appropriation. “[T]he General Assembly is permitted through the reduction or elimination of an appropriation, to effectively eliminate the efficacy of existing statutes .... ” Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d at 441. In fact, the State Senate’s 2002 refusal to fund the election campaign fund established in KRS 121A.020 was the immediate cause of the collapse of that session’s budget negotiations. Obviously, the mere existence of KRS 121A.020 was not a mandate to fund it.

A similar crisis occurred in the federal government in 1980 when it became apparent that Congress would not pass a federal budget or a budget continuation plan before October 1, the beginning of the next fiscal year. Former United States Attorney General Benjamin R. Civiletti opined, when interpreting 31 U.S.C. § 1341, the “Anti-Deficiency Act,” which precludes any officer, or employee of the government from making or authorizing the expenditure of unappropriated funds, that:

[Statutory authority to incur obligations in advance of appropriations ... may not ordinarily be inferred, in the absence^ appropriations, from! the kind of ...-bifoad, 'catjegorical authority, standing alone, that often appears, for example, in the organic statutes of governmental agencies.

5 Op. Off. Legal Counsel 1, 2 (1980) (quoted in 43 Op. Atty. Gen. 293, 297 (1981)). We agree. Only those statutes specifically mandating that payments or contributions be made can be interpreted as self-executing appropriations. A mandated appropriation cannot be inferred from the mere existence of an unfunded statute.

In contrast, “constitutional provisions are mandatory and never directory.” Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76, 78 (1939). Certain provisions of our Constitution mandate payments for services rendered, viz:

Section 42 (“The members of the General Assembly shall severally receive from the State Treasury compensation for their services .... ”);

Section 74 (“The Governor and Lieutenant Governor shall at stated times receive for the performance of the duties of their respective offices compensation to be fixed by law.”);

Section 86 (“The President of the Senate shall receive for his services the same compensation which shall, for the same period, be allowed to the Speaker of the House of Representatives, and during the time he administers the government as Governor, he shall receive the same compensation which the Governor would have received had he been employed in the duties of his office.”);

Section 96 (“All officers mentioned in Section 95 shall be paid for their services by salary, and not otherwise.”);

Section 98 (“The compensation of the Commonwealth’s Attorney shall be by salary and such percentage of fines and forfeitures as may be fixed by law, and such salary shall be 'uniform in so far as the same shall be paid out of the State Treasury, and not to exceed the sum of five hundred dollars per annum .... ”);

Section 106 (“In counties or cities having a population of seventy-five thousand or more, the Clerks of the respective Courts thereof (except the Clerk of the City Court), the Marshals, the Sheriffs and the Jailers, shall be paid out of the State Treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses not to exceed seventy-five per centum of the fees collected by said officers, respectively, and paid into the Treasury.”);

Section 120 (“All justices and judges shall be paid adequate compensation which shall be fixed by the General Assembly. All compensation and necessary expenses of the Court of Justice shall be paid out of the State Treasury. The compensation of a justice or judge shall not be reduced during his term.”); and

Section 235 (“The salaries of public officers shall not be changed during the terms for which they were elected

There are other constitutional mandates that can only be implemented by the expenditure of funds from the treasury. These are:

Section 40 (“Each House of the General Assembly shall keep and publish daily a journal of its proceedings .... ”); Section 53 (“The General Assembly shall provide by law for monthly investigations into the accounts of the Treasurer and Auditor of Public Accounts

Section 147 (“The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more .... ”);

Section 151 (“The General Assembly shall provide suitable means for depriving of office any person who, to procure his nomination or election, has ... been guilty of any unlawful use of money, or other thing of value, or has been guilty of fraud, intimidation, bribery, or any other corrupt practice ....”);

Section 183 (“The General Assembly shall, by appropriate legislation, provide for' an efficient system of common schools throughout the State.”);

Section 220 (“The General Assembly shall provide for maintaining an organized militia .... ”);

Section 221 (“The organization, equipment and discipline of the militia shall conform as nearly as practicable to the regulations for the government of the armies of the United States.”);

Section 223 (“The General Assembly shall provide for the safekeeping of the public arms, military records, relics and banners of the Commonwealth of Kentucky.”);

Section 244a (“The General Assembly shall prescribe such laws as may be necessary for the granting and paying of old persons an annuity or pension.”);

Section 252 (“It shall be the duty of the General Assembly to provide by law ... for the establishment and maintenance of an institution or institutions for the detention, correction, instruction and reformation of all persons under the age of eighteen years, convicted of such felonies- and such misdemeanors as may be designated by law. Said institution shall be known as the ‘House of Reform.’ ”); and

Section 254 (“The Commonwealth shall maintain control of the discipline, and provide for all supplies, and for the sanitary conditions of the convicts .... ”).

Unlike unfunded statutes, which are creatures of the General Assembly who may choose to fund them or not, these constitutional mandates must be implemented. “The Kentucky Constitution is, in matters of state law, the supreme law of this Commonwealth to which all acts of the legislature, the judiciary and any government agent are subordinate.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 681 (Ky.1994). The General Assembly cannot prevent the implementation of constitutional mandates by simply withholding its appropriations power. In the absence of appropriations by the General Assembly, the Treasurer must fund these constitutional mandates at no more than existing levels until the General Assembly provides otherwise.

Finally, there are what the parties in this case have referred to as “federal mandates,” ie., programs or requirements established by federal law that require expenditure of state funds. While the constitutionality of such mandates is currently in doubt, Printz v. United States, 521 U.S. 898, 925, 117 S.Ct. 2365, 2380, 138 L.Ed.2d 914 (1997); New York v. United States, 505 U.S. 144, 188, 112 S.Ct. 2408, 2435, 120 L.Ed.2d 120 (1992), that issue is not before us. Nor do we decide whether a state, having accepted federal benefits, can opt out of an otherwise voluntary participation in a federal program. E.g., 29 U.S.C. § 651, et seq. (Occupational Safety and Health Act of 1970); 30 U.S.C. § 1201, et seq. (Surface Mining Control and Reclamation Act of 1977); 33 U.S.C. §■ 1251, et seq. (Clean Water Act); 42 U.S.C. § 6901, et seq., (Resource Conservation and Recovery Act of 1976); 42 U.S.C. § 7401, et seq. (Clean Air Act). We simply hold that to the extent the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, requires compliance with any valid federal mandate, it must be funded by the Treasurer notwithstanding Section 230 of the Constitution of Kentucky.

However, absent a statutory, constitutional, or valid federal mandate, Section 230 precludes the withdrawal of funds from the state treasury except pursuant to a specific appropriation by the General Assembly.

VI. CONTINUATION BUDGET.

The Attorney General posits that, in addition to statutory, constitutional, and federal mandates, the Governor ought to be able to look to the immediately preceding biennial budget as a “guide” for additional appropriations, ie., a kind of “quasi-continuation budget.”

From 1918 until 1983, there existed statutory authority for a continuation budget in Kentucky, subject to substantial executive department leeway, viz:

If the General Assembly fails to make an appropriation for any fiscal year for any purpose required to be executed by provisions of existing laws, or if the Governor vetoes an appropriation essential to the carrying out of any such purpose, an appropriation equal in amount to the appropriation made, or deemed to have been made under this section, for that purpose for the fiscal year next preceding, exclusive of any such appropriations for extraordinary expenses and capital outlays, shall be deemed to have been made and shall continue available from year to year until an appropriation has been made as provided in this chapter and has become effective. If any such appropriation for the fiscal year next preceding is applicable alike for ordinary recurring expenses, extraordinary expenses, and capital outlays, the Executive Department for Finance and Administration shall determine what proportion thereof shall be deemed under the provisions of this section to have been appropriated for ordinary recurring expenses by the General Assembly for the next fiscal year. Each appropriation or the proportion of each appropriation that is continued under this section shall be included in the budget and made available for expenditure by allotments as provided in this chapter.

KRS 45.120. The statute was repealed effective July 1, 1983. 1982 Ky. Acts, ch. 450, § 79. We interpret that repeal as a specific legislative rejection of the solution proffered by the Attorney General. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 586, 72 S.Ct. at 866 (finding no Congressional authority for President’s seizure of steel mills partially because, “[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.”).

Thus, we are left with KRS 48.310(1) (“No provision of a branch budget bill shall be effective beyond the second fiscal year from the date of its enactment.”) and the ancient principle that each legislature is a free and independent body and cannot control the conduct of its successor except by acts in the form of binding contracts. Bd. of Trustees v. Attorney Gen., 132 S.W.3d at 789; City of Mt. Sterling v. King, 126 Ky. 526, 104 S.W. 322, 322 (1907); Swift & Co. v. City of Newport, 70 Ky. (7 Bush) 37, 41 (1870). There presently exists no authority for a continuation budget in Kentucky.

VIL GOVERNOR’S CONSTITUTIONAL POWERS.

The Governor asserts that when the General Assembly fails to exercise its appropriations power to fund the operations of the executive department, he (the Governor) possesses the inherent power to order the appropriations necessary to prevent the imminent collapse of governmental services. He cites Sections 69 and 81 of the Constitution as the source of that power.

Section 69 provides; “The supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the ‘Governor of the Commonwealth of Kentucky.” ’ That provision only vests the Governor with executive powers, just as Section 29 vests.the General Assembly with legislative powers and Section 109 vests the Court of Justice with judicial powers. Manifestly, Section 69 does not vest the Governor with legislative powers, which are specifically reserved by Sections 28 and 29 solely to the legislative department. Section 81 provides: “He shall take care that the laws be faithfully executed.” The Governor asserts that he cannot faithfully execute the laws enacted by the General Assembly without the funds necessary to do so. However, as noted earlier in this opinion, the mere existence of a law does not mean that it must be implemented if doing so requires the expenditure of unappropriated funds. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d at 441.

The same Constitutional powers and duties described in Sections 69 and 81 are granted to the President of the United States by Article II, Sections 1 and 3 of the United States Constitution. As Justice Black wrote in the lead opinion in the Youngstown case;

In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States.”

Youngstown, 343 U.S. at 587-88, 72 S.Ct. at 867. See also Myers v. United States, 272 U.S. at 295, 47 S.Ct. at 85 (Holmes, J., dissenting) (“The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.”). The Governor has no constitutional authority to exercise legislative powers even when the General Assembly has failed to do so.

VIII. ALLEGED EMERGENCY POWERS.

The Governor also cites the opinions of our predecessor court in Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947), and Rhea v. Newman, 153 Ky. 604, 156 S.W. 154 (1913), for the proposition that he may expend -unappropriated funds to provide essential services during emergencies. We easily distinguish Rhea because the funds in that case had, in fact, been appropriated ■ by the General Assembly. There simply was insufficient money in the treasury to pay the warrant when it was submitted. A statute, 1910 Ky. Acts, ch. 72, § 3, provided that, in such a circumstance, the Treasurer should endorse the warrant as bearing five percent interest from the date of its presentation. The issue was whether, considering the extent of other state indebtedness, that endorsement would violate Section 49 of the Constitution, which authorizes the General Assembly to contract debts to meet casual deficits, but requires that such debts not exceed a maximum of $500,000. Rhea, 156 S.W. at 155. The case had nothing to do with Section 230.

Quertermous did have to do with Section 230, but has been regarded as an anomaly, at best. There, the General Assembly made what it believed to be sufficient appropriations for the maintenance o!f state prisons, correctional institutions for children, and mental institutions. Unfortunately, with the elimination of the price control system in effect during World War II, the cost of living rose unexpectedly and the appropriated funds proved insufficient to pay the necessary, ordinary and recurring expenses of those institutions. The Commissioner of Welfare sued the State Treasurer and the Commissioner of Finance for funds necessary to continue the operation of the institutions. Noting that the appropriated funds would expire on May 15, 1947 (the opinion was rendered on May 16, 1947), and that there was a substantial surplus in the treasury, Quertermous, 202 S.W.2d at 390, the court ordered the Treasurer to pay the funds necessary to operate the institutions. Id. at 392.

We are justified in assuming that the Legislature was fully cognizant of its obligation to make such appropriation for the care of these institutions and inmates.' The intention so to care for them is evidenced by the appropriation made. The fact that an unanticipated rising cost of living later shows the estimate to be erroneous, in no way operates to destroy that proper intention, nor could it in any way be justifiable grounds for criticism. A great untouched surplus of public funds, collected for public purposes, is on hand. An unexpected and unanticipated emergency requiring more than emotional gestures confronts us.

Id. at 391-92. Thus, the court inferred an intent on the part of the General Assembly to provide the additional funds for the operation of the institutions from the fact that it had already appropriated what it believed to be sufficient funds for their operation, and from the fact that a surplus of funds was on hand in the treasury sufficient to pay for their continued operation. The opinion can be partially justified by the constitutional mandates of Sections 252 and 254 and partially explained by expediency (though there is no explanation why the Commissioner of Welfare did not ask the Governor to call an extraordinary session of the General Assembly to obtain a proper legislative appropriation of the necessary funds, a process that would have required less time than it took to litigate the issue through the trial and appellate courts).

Nine years later, the Attorney General sued the Commissioner of Finance for funds needed to operate his office in excess of those appropriated by the General Assembly, citing Quertermous. Ferguson v. Oates, 314 S.W.2d at 519-20. Recognizing the fundamental impropriety of a court order directing payment of unappropriated funds to provide to the executive department additional funds that the legislature had deemed unnecessary, the court in Ferguson expressly limited Quertermous to its facts. “[T]he court’s action was ‘brought about by an inexorable necessity coupled with an inescapable responsibility,’ and the case should not be considered as precedent except under comparable conditions.” Ferguson, 314 S.W.2d at 520. In fact, despite the Quertermous court’s obvious good intentions when faced with seemingly insoluble facts, the decision was pri-ma facie an unconstitutional encroachment by the executive and judicial departments on the powers of the legislative department. Good intentions do not justify unconstitutional acts. Dishman v. Coleman, 244 Ky. 239, 50 S.W.2d 504, 508 (1932) (State Treasurer held personally liable for expenditure of unappropriated funds “even though the officer thought he was doing what- was best for the commonwealth, and had the concurrence of the Attorney General at the time.”⁴).

We reject the proposition that a Governor can unilaterally declare an emergency and spend unappropriated funds to resolve it. As Justice Jackson said in his famous concurring opinion in the Youngstown case:

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.

[[Image here]]

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.

[[Image here]]

[E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.

[[Image here]]

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Youngstown, 343 U.S. at 646, 649-50, 652, 655, 72 S.Ct. at 875-76, 877, 878, 880 (Jackson, J., concurring).

The Governor possesses no “emergency” or “inherent” powers to appropriate money from the state treasury that the General Assembly, for whatever reason, has not appropriated. Cf. Brown v. Barkley, 628 S.W.2d 616, 623 (Ky.1982) (“Practically speaking, except for those conferred upon him specifically by the Constitution, [the Governor’s] powers, like those of the executive officers created by Const. Sec. 91, are only what the General Assembly chooses to give him.”). Nor does the Court of Justice have the power to confer such authority. Miller v. Quertermous is overruled to the extent it holds or can be interpreted otherwise.

IX. SUSPENSION OF STATUTES.

As earlier noted, the Attorney General initiated this action to prevent the Governor’s anticipated suspension of 153 statutes. Among the statutes that the parties to this appeal claim were actually suspended in the Public Services Continuation Plan were KRS 18A.010(2) (number of state employees limited to 33,000); KRS 18A.S55(1) (automatic 5% annual pay increases for all state employees); KRS 42.4585 (allocation of Local Government Economic Assistance Funds); KRS 61.565(2) (delegation of authority to Kentucky Retirement Systems Board of Trustees to determine employer contribution rates necessary to adequately fund the Kentucky Employees Retirement System).

Section 15 of our Constitution provides: “No power to suspend laws shall be exercised unless by the General Assembly or its authority.” Since this provision is a part of the Bill of Rights, the Governor could not suspend statutes even if he possessed “emergency” or “inherent” powers under Sections 69 and 81. Ky. Const. § 26 (“To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government .'...”). Thé suspension of statutes by a Governor is also antithetical to the constitutional duty to “take care that the laws be faithfully executed.” Ky. Const. § 81. A fortiori, the suspension of any statutes by the Governor’s Public Services Continuation Plan was unconstitutional and invalid ab initio.

However, neither the parties representing state employees⁵ nor the Board of Trustees of the Kentucky Employees Retirement System presently seek remedial relief from the suspensions of KRS 18A.355(1) and KRS 61.565(2), admitting that those issues were resolved during the 2004 extraordinary session of the General Assembly.

X. CONCLUSION.

Some truths are so basic that, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. ■ The result may appear “formalistic” in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power ... among branches of government precisely so that we may resist the temptation to concentrate power in one location as' an expedient solution to the crisis of the .day.

New York v. United States, 505 U.S. at 187, 112 S.Ct. at 2434.

There is no constitutional mandate that the General Assembly enact a budget bill, and there is no statute providing for an alternative when it fails to do so. Despite much hand-wringing and doomsday forecasting by some of the parties to this action at the prospect that we would hold that Section 230 means what it unambiguously says, it is not our prerogative to amend the Constitution or enact statutes. When the General Assembly declines to exercise its appropriations power, that power does not flow over the “high wall” erected by Section 28 to another department of government.

The separation of the powers of government did not make each branch completely autonomous. It left each in some measure, dependent on the others _Obviously, the President cannot secure full execution' of the laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress ... declines to make the indispensable appropriation .... If ... adequate means are denied to the President, the fault will lie with Congress. The President performs his Ml constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithM execution of the laws enacted.

Myers, 272 U.S. at 291-92, 47 S.Ct. at 84 (Brandéis, J., dissenting). If the legislative department fails to appropriate funds deemed sufficient to operate the executive department at a desired level of services, the executive department must serve the citizenry as best it can with what it is given. If the citizenry deems those services insufficient, it will exercise its own constitutional power — the ballot. Ky. Const. §§ 31, 70.

Accordingly, we affirm that portion of the Franklin Circuit Court’s judgment that declares the Public Services Continuation Plan unconstitutional insofar as it requires expenditure from the treasury of unappropriated funds other than pursuant to statutory, constitutional, and federal mandates; and reverse that portion of the Franklin Circuit Court’s judgment that authorizes unappropriated expenditures for other “limited and specific services previously approved in Querter-mous.”

GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ„ concur. LAMBERT, C.J., concurs in part and dissents in part by separate opinion. KELLER, J., concurs in part and dissents in part by separate opinion, with SCOTT, J., joining that opinion.

1 . On June 27, 2002, the Chief Justice promulgated an order implementing a spending plan to cover the expenses of the judicial department from and after July 1, 2002, and issued warrants against the treasuiy to fund that plan. The constitutional efficacy of this order is not before us. But see Ky. Const. § 120, discussed infra.

2 . No doubt, the circuit court permitted the temporary continuation of the executive spending plan for reasons of expediency. However, as will be noted later in this opinion, expediency does not justify the judicial sanction of an unconstitutional act. The better course would have been to stay the judgment pending appeal.

3 . Judge Du Relie cited to no authority for the following account of Jefferson's role. Later authorities cite only to Judge Du Relle’s dissents in George and Purnell, infra.

4 . Dishman noted that the General Assembly had the power to appropriate funds to pay the judgment against the Treasurer, id. at 508, a solution similar to the General Assembly’s ultimate ratifications of the executive spending plans promulgated by Governors Patton and Fletcher, respectively.

5 . Those parties were permitted to withdraw from this litigation prior to oral argument.